CAAFlog » Military Justice Legislation

According to this Reuters report, the Sinclair trial is delayed “indefinitely,” and the members are returning to their normal duties. The Associated Press adds that:

Attorneys for an Army general charged with sexual assault said Tuesday that they have decided to try to renegotiate a plea bargain with a new set of military officials after the judge determined that the case may have been improperly influenced by political concerns.

Judge Col. James Pohl sent the jury of generals back to their duty stations around the world after attorneys for Brig. Gen Jeffrey A. Sinclair announced their decision. The two sides will enter negotiations to try to resolve the case. A new general and legal advisers would have to be brought in to approve any new deal.

Additional coverage in this local media story and this LA Times story. But if you haven’t been following along over the past few days, you’re probably going to want to at least skim our recent coverage at this link.

The Senate passed Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) by a vote of 97-0. Coverage of the bill is available in our Military Justice Legislation category. The Hill reports here that the bill may not get consideration in the House outside of the normal NDAA process.

And finally, from this Air Force Times Report:

An airman whose sexual assault case was dismissed last September by former Third Air Force commander Lt. Gen. Craig Franklin will now face court-martial on rape charges.

The Congressional Record now has the full transcript of the floor debate on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas) (cloture failed) and Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) (cloture invoked; vote scheduled for 5:30 p.m. on Monday, March 10).

I’ve saved the text of the debate as a 31-page PDF that you can download here.

I encourage you to read it all, but I think the comments of Senator Levin (D-MI), Chairman of the Senate Armed Services Committee, are particularly good and I reproduce them after the jump.

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As shown in this record of votes, after a lively floor debate (that you can watch here, beginning at 2:06:30), the Senate failed to invoke cloture on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas). However, the Senate unanimously voted to end debate on Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas), and it scheduled a vote on the bill for 5:30 p.m. on Monday, March 10.

The bill’s current text does not make any changes to the UCMJ. Unfortunately, it does seek to eliminate the general defense of good military character:

[Section 3:]
(g) Modification of Military Rules of Evidence Relating to Admissibility of General Military Character Toward Probability of Innocence- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be modified to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except that evidence of a trait of the military character of an accused may be offered in evidence by the accused when that trait is relevant to an element of an offense for which the accused has been charged.

I’ve written about this proposal before (in this post), and if it becomes law I’ll write about it again. But for now I’ll just note that one criticism of the defense of good military character – that it “advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial” (Elizabeth Hillman, The “Good Soldier” Defense: Character Evidence and Military Rank at Courts-Martial, 108 Yale L.J. 879 1998-1999 (available here)) – isn’t actually addressed by the elimination of the ability to present evidence of general good character. Quite the opposite actually, as the high-ranking accused can just sit at the defense table wearing his good military character on his chest. It’s the junior accused who needs to present evidence of his character to convince the finder of fact that it is “unlikely that he would be guilty of the particular crime with which he is charged.” Edgington v. United States, 164 U.S. 361, 363 (1896) (link).

The Senate is currently debating further reforms to the UCMJ, including the Gillibrand and McCaskill bills (discussed here). Live video on the Senate’s website here, and video of the day’s full session at C-SPAN here.

Brigadier General Sinclair is pleading guilty to nine specifications of three charges. According to this story:

Sinclair faces eight charges that enumerate 23 allegations of wrongdoing.

He proposes to plead guilty to three of the eight charges, admitting nine of the 23 allegations of wrongdoing, according to Scheff.

Sinclair’s planned guilty pleas include adultery with the captain, engaging in an inappropriate relationship with the captain, having inappropriate (but nonphysical) relationships with two other female Army officers, and possession of pornography in violation of Army orders in Afghanistan.

He also plans to plead guilty to conduct unbecoming an officer and a gentleman by engaging in sexually explicit communications with the two female officers that he had non-physical inappropriate relationships with – obtaining a nude photo of one – and of attempting to have an inappropriate relationship with a fourth female officer.

And Sinclair will plead guilty to impeding the investigation by deleting a nude photo of a civilian woman and deleting a personal email account, Scheff said.

Sinclair continues to plead not guilty to: committing forcible oral sodomy on his mistress, fondling her genitalia at times when she did not wish to have sexual contact with him, and by committing open and notorious sex acts in public places with the woman

In part five of my six part series about the military justice reforms in the FY14 NDAA, I discussed sections 1702 and 1706 of the NDAA (complete NDAA text available in Word here and in PDF here). Both of these sections made changes to Article 60, which gives the convening authority the power to act on the findings and sentence of a court-martial. Section 1702(b) of the NDAA completely rewrote Article 60(c) of the UCMJ, implementing major changes that limit a convening authority’s previously-unlimited power to disapprove a finding of guilty or reduce a sentence. Section 1706 of the NDAA created a new Article 60(d) that gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

Within section 1702 is express language making it effective 180 after enactment. But section 1706 does not include such language. Because of this, I made the following statement in part five of my series:

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

I’ve since learned of an alternative interpretation that reads the NDAA to make both sections 1702 and 1706 effective 180 days after enactment. I suspect that this interpretation is based on the fact that at the beginning of section 1706 are the words “…as amended by section 1702…,” and that the alternative interpretation reads this language to incorporate the effective date from section 1702 into section 1706. But for the following reasons I respectfully disagree with this interpretation, and I maintain my belief that Congress intended a victim to have the right to submit matters immediately.

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I’ve combined my recent six-post series discussing the military justice reforms in the FY14 NDAA into a single PDF that you can download at this link. The six original posts are available here.

This is part six of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

After working through the military justice provisions in the NDAA and writing this series of posts, it’s clear that the first practice note is that it’s important for you to read the new provisions for yourself. It’s worth at least skimming all 38 military justice provisions from the NDAA in this bookmarked PDF. I also recommend using our Word version of the UCMJ, and reading in full:

  • Article 6b (“Rights of the victim…”). Also check out the Crime Victims’ Rights Act (18 U.S.C. § 3771).
  • The future Article 32 (discussed in this post).
  • The new Article 46 (discussed in this post).
  • The future Article 60(c) and the new Article 60(d) already in effect (discussed in this post).
  • The future Article 56 (sex offense mandatory minimums) and Article 18 (jurisdiction for the mandatory minimums).

I think that there are more potential pitfalls for prosecutors than for defense counsel in the new rules. For starters, prosecutors need to be more cautious when making charging decisions. Charging the most serious sex offenses will implicate the mandatory minimums and the restrictions on the convening authority’s ability to reduce a sentence, even when there is a PTA. They will also invoke the requirement for review if not referred to trial. A victim named in a specification will have the option to refuse to participate in the Article 32 preliminary hearing, and the VWAP process will likely get more attention now that victims shall have an opportunity to submit post-trial matters. The trial counsel must also affirmatively act to invoke the victim-interview provisions of Article 46(b).

But there’s plenty of danger for defense counsel, who will need to get more creative in presenting a case under the future Article 32. And the mandatory minimums are hard to avoid, even when the accused pleads guilty, unless the plea is to a lesser offense that doesn’t have a minimum. There’s also the issue of the recommendation from a trial counsel for sentence reduction in recognition of substantial assistance. Such a recommendation isn’t required in a case with a pretrial agreement and no mandatory minimum sentence, but it’s going to be a distinguishing feature of a deserving accused. Wherever the facts support such a recommendation, defense counsel should try to get it, perhaps as a term of the PTA. And the defense has to tread carefully around the victim-interview provisions of Article 46 (for now, at least).

Both sides will get much more familiar with the deposition rules once victims can refuse to participate in an Article 32. And both sides will have to watch out for pitfalls from the provisions that don’t take effect until the future and apply only to offenses committed on or after their effective date (Articles 32 and 60(c), and the mandatory minimums). The normal practice of combining all known offenses into a single court-martial will create situations where two separate versions of the Code to apply to a single case. For example, offenses committed in November, 2014, and in January, 2015, and destined for the same general court-martial, will require two separate Article 32 proceedings (one an “investigation” of the November offenses, and the other a “preliminary hearing” on the January offenses). Similar difficulties will arise late this summer, when convening authorities start acting on cases that both pre- and post-date the new Article 60(c).

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This is part five of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

In prior posts of this series I discussed aspects of military law, such as discovery rules and the pretrial investigation, that developed a century ago. Command discretion is another ancient part of our law. But the “Elimination of Unlimited Command Prerogative and Discretion” in Section 1702(b) of the FY14 NDAA isn’t the first time Congress has restricted a commander’s ability to modify the findings and sentence of a court-martial. Rather, it’s merely the first time Congress has done so to the possible detriment of an accused.

During congressional hearings in 1919, Major General Enoch H. Crowder, The Judge Advocate General of the Army, discussed regulations that actually permitted a commander to return a case for reconsideration of an acquittal or to increase a sentence (link to transcript). General Crowder presented Congress with a review of 1,000 cases, of which 56 were returned to the members for reconsideration of acquittals. Of these 56 cases, an acquittal was changed to a conviction in a whopping 18 (one third). This provoked popular outcry and press attention, and in 1920 Congress revised Article 40 of the Articles of War to expressly prohibit returning a record for reconsideration of an acquittal or increasing the severity of a sentence (old text) (new text) (and this prohibition still exists within Article 60).

Popular and press outrage is now focused on the exact opposite scenario: Lieutenant General Franklin’s action that changed a conviction into an acquittal in the Wilkerson case (our #5 story of 2013). And just as Congress removed the ability to change an acquittal into a conviction or increase a sentence in 1920, Congress now limits a commander’s ability to reverse a conviction or reduce a sentence.

In Section 1702(b) (that will not take effect until June 24, 2014 – 180 days after enactment) Congress rewrites Article 60(c) of the UCMJ to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. Current law permits a convening authority to set aside any finding of guilty, either entirely or by substituting a finding of guilty to a lesser included offense. It also gives the convening authority unlimited discretion to disapprove any part or all of a sentence. But the future law allows modification of the findings or sentence only in certain cases.

The full text of the future Article 60(c) follows:

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This is part four of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Section 1702(a) of the NDAA rewrites Article 32 of the UCMJ. The changes aren’t effective until one year after enactment, but they eliminate the century-old requirement of a “thorough and impartial investigation” of charges before trial, and the similarly ancient guarantee that an accused can present to the investigator anything he wishes in his own defense.

Paragraph 76 of the 1918 version of the Manual for Courts-Martial (link) required an investigation for any charge forwarded past the summary court-martial level, and explicitly guaranteed “the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that he may desire to have considered in connection with the accusation against him.” This guarantee was enacted into Article 70 of the Articles of War in 1920 (link), along with the specific requirement that the investigation be “thorough and impartial.” And this early requirement for a pretrial investigation was considered by the Supreme Court in Humphrey v. Smith, 336 U.S. 695 (1949), where a divided Court determined that it was “important,” but not jurisdictional.

When the UCMJ was enacted in 1950, Article 32 incorporated both the requirement of a “thorough and impartial investigation” and the right of an accused “to present anything he may desire in his own behalf,” along with making the process “binding” but not jurisdictional. The scope of the investigation included, but notably was not limited to, “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”

This language was left untouched for more than 60 years, but the revision contained in Section 1702(a) of the FY14 NDAA will, when effective, eliminate it entirely. Beginning on December 27, 2014, there will be no more pretrial investigations.

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This is part three of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Since signed into law by President Truman on May 5, 1950, Article 46 of the Uniform Code of Military Justice has provided that “the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”

Article 46 of the UCMJ was based on Article 22 of the Articles of War (1948) and Article 42(b) of the Articles for the Government of the Navy (1946), along with a 1947 proposal to modify the Navy rules. Those precursor rules (in their then-current and prior versions) addressed the procedural method to obtain witnesses to testify at trial, with the Article of War identifying the “Process to Obtain Witnesses,” and the Article for the Government of the Navy providing for “power to issue like process to compel witnesses to appear and testify.” During congressional hearings on the proposed Code, Assistant General Counsel for the Secretary of Defense Felix Larkin explained that Article 46 “go[es] a little further; but in essence it is the same as the provision now in effect” (link to testimony).

This history indicates that Article 46 was conceived more as a rule for process than a rule for discovery. But “military law has long been more liberal than its civilian counterpart in disclosing the government’s case to the accused and in granting discovery rights.” United States v. Killebrew, 9 M.J. 154, 159 (C.M.A. 1980). For instance, before enactment of the UCMJ, paragraph 45(b) of the 1949 Manual for Courts-Martial (link) provided:

Ample opportunity will be given the accused and his counsel to prepare the defense, including opportunities to interview each other and any other person.

Then, the 1951 Manual for Courts-Martial (prepared specifically to implement the UCMJ, according to its separate “Legal and Legislative Basis” pamphlet) included similar language in paragraph 42c (link):

Counsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel or the accused.

The 1951 language remained in effect until the 1984 Manual, which was a major revision that created the modern Rules for Courts-Martial. Included in this revision was Rule for Courts-Martial 701, unequivocally stating procedures for “Discovery.” The 1984 version of Rule 701(e) (link) was:

(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.

And this language is unchanged in the current (2012) version of the Manual. So, whatever the original intent of Article 46, the Manual has long guaranteed the right of the Defense to interview witnesses. In the decades since establishment of the Code, military courts have repeatedly used Article 46 and the Rules for Courts-Martial to strike down restrictions on Defense access to witnesses.

But Section 1704 of the NDAA changes Article 46, creating the first ever statutory limitation on the right of a military accused or his counsel to interview a particular type of witness.

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This is part two of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Of the 15 NDAA provisions identified in the first part of this series, seven of them affect the earliest stages of a court-martial prosecution. They are:

  • § 1701, creating “Article 6b. Rights of the victim of an offense under this chapter.”
  • § 1716, codifying the special victims counsel program in 10 U.S.C. § 1044e, “Special Victims’ Counsel for victims of sex-related offenses.”
  • § 1703, amending Article 43 to eliminate the 5-year statute of limitations on sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This section applies only to offenses committed on or after December 26, 2013.
  • § 1705(a), amending Article 56 to create a mandatory minimum of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. This takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1705(b), amending Article 18 to confer jurisdiction over the 1705(a) offenses to only general courts-martial. This also takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1708, requiring the President to amend the non-binding discussion to R.C.M. 306.
  • § 1707, repealing the offense of consensual sodomy.

Discussion of each of these provisions follows.

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This is part one of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

The National Defense Authorization Act for Fiscal Year 2014 is a big piece of legislation. Contained within the 1,106 page bill are 38 sections addressing a variety of military justice issues. I’ve excerpted all 38 of these sections into a document with a table of contents (Word version available here) (PDF version available here).

From these 38 military justice sections I’ve identified the most important 15. They are: The eight sections that make ten changes to the UCMJ (two sections each make two changes), and five other sections that will significantly impact court-martial prosecutions.

The ten changes to the Code are:

§ 531. Modification of eligibility for appointment as Judge on the United States Court of Appeals for the Armed Forces.
§ 1701. Extension of crime victims’ rights to victims of offenses under the Uniform Code of Military Justice.
§ 1702(a). Revision of Article 32 (Use of Preliminary Hearings).
§ 1702(b). Revision of Article 60(c) (Elimination of Unlimited Command Prerogative and Discretion).
§ 1703. Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes.
§ 1704. Defense counsel interview of victim of an alleged sex-related offense in presence of trial counsel, counsel for the victim, or a Sexual Assault Victim Advocate.
§ 1705(a). Discharge or dismissal for certain sex-related offenses.
§ 1705(b). Trial of such offenses by general courts-martial.
§ 1706. Participation by victim in clemency phase of courts-martial process.
§ 1707. Repeal of the offense of consensual sodomy under the Uniform Code of Military Justice.

Of these ten sections and subsections, four do not take effect until the future. These are:

  • The new Art. 32 (effective Dec. 27, 2014);
  • The new Art. 60(c) (effective Jun. 24, 2014);
  • The mandatory minimums for sex offenses (effective Jun. 24, 2014); and
  • The requirement for trial by general court-martial for the sex offenses with mandatory minimums (effective Jun. 24, 2014).

I’ve updated our Word document version of the UCMJ to include all of the new Code provisions (there are annotations for the provisions effective in the future). I’ve also significantly reformatted the document and added a linked table of contents.

The other five sections likely to have significant impact on court-martial prosecutions are:

§ 1708. Modification of Manual for Courts-Martial to eliminate factor relating to character and military service of the accused in rule on initial disposition of offenses.
§ 1716. Designation and availability of Special Victims’ Counsel for victims of sex-related offenses.
§ 1744. Review of decisions not to refer charges of certain sex-related offenses for trial by court-martial.
§ 1752. Sense of Congress on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial.
§ 1753. Sense of Congress on the discharge in lieu of court-martial of members of the Armed Forces who commit sex-related offenses.

Over the rest of this week I will discuss all 15 of these provisions in this series of posts, as follows:

  • Part 1: Overview (this post). CAAF eligibility change (§531).
  • Part 2: Preferral-stage changes. Victims rights (§1701), SVC statute (§1716), statute of limitations (§1703), mandatory minimums (§1705(a) and (b)), repeal of consensual sodomy (§1707), and initial disposition factors (§1708).
  • Part 3: Discovery. Changes to Art. 46 (§1704).
  • Part 4: Article 32. The new Art. 32 (§1702(a)), review of decisions not to refer sex-related offenses to trial (§1744), and sense of Congress provisions (§1752 and §1753).
  • Part 5: Post-trial matters. The new Art 60(c) (§1702(b)) and Article 60(d) ((§1706).
  • Part 6: Practice notes. Thoughts on how these new provisions will affect pretrial negotiations, trial practice, and post-trial actions.

Below is a discussion of the first change to the Code: The CAAF eligibility change.

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The President signed the FY14 NDAA into law on Thursday, including the various changes to the military justice system (overview provided in this post). The President released a statement about the bill that discusses only Guantanamo detention provisions. The full text of the legislation is available on Thomas at this link.

The legislation contains some major changes to the UCMJ. I’m working now on a series of posts discussing the changes, as well as a collection of reference materials, that I plan to publish during the week of January 6.

The Hill reports that the cloture vote I discussed yesterday passed 71-29. Considering the minority’s biggest gripe was the lack of opportunities for amendments, I can’t imagine any senator who voted for cloture not voting for the bill. So passage by the Senate before the end of the year is practically assured.

I still won’t have my deep dives into the military justice provisions in the bill until the new year, but I will share this bit from Senator Levin’s introduction of the compromise legislation to the Senate on December 9 (link to pdf):

Although we were unable to consider the Gillibrand and McCaskill amendments on the Senate floor or in the bill itself that will be forthcoming, the bill includes more than 20 other provisions to address the problem of sexual assault in the military that were in the Senate bill that came to the floor out of the committee and that were in the House of Representatives bill as well.

These provisions include the following: They provide a special victims’ counsel for survivors of sexual assault, make retaliation for reporting a sexual assault a crime under the Uniform Code of Military Justice. The provisions require commanders to immediately refer all allegations of sexual assault to professional criminal investigators. They would end the commanders’ ability to modify findings and convictions for sexual assaults, and would require higher level review of any decision not to prosecute allegations of sexual assault.

The bill will do the following that will be hopefully coming here next week: Make the Article 32 process more like a grand jury proceeding. Under the UCMJ, the Uniform Code of Military Justice, currently the proceeding that is taken under Article 32 is more like a discovery proceeding rather than a grand jury proceeding, and it has created all kinds of problems, including for victims of sexual assault who would have to appear and be subject to cross-examination by the defense.

In this post last week I discussed some of the 38 sections addressing military justice issues in the National Defense Authorization Act for Fiscal Year 2014 (and the comments section to that post has been lively).

However, I’m holding off on a deep dive into the new provisions until they pass both houses of Congress. While there’s a lot to write about and discuss, there’s the holidays, our annual Top Ten list, and my day job. That said, assuming Congress passes the NDAA before the end of the month, I’m planning a series of posts for early January in which I will analyze the military justice sections of the law.

But about that assumption… The NDAA in its current form is a compromise reached by House and Senate leaders. The compromise legislation passed the House on December 12 by a comfortable margin. The Senate began its consideration of the compromise legislation on December 9 and a cloture motion was made on December 15. That motion could have been considered as early as this morning, but the Senate spent the day on the budget resolution. This story from The Hill predicts that the Senate will vote on the cloture motion tomorrow (Wednesday) afternoon, and that it will pass.

For those interested in watching the sausage as it’s made, here are some references:

Link to Thomas summary of H.R.3304
Link to Thomas summary of S.1197
PDF of Congressional record: Senate’s December 9 consideration of NDAA (colloquy between Senators Levin, Inhofe, and McCain about the compromise; includes a letter from General Dempsey)
Link to congressional record: December 15 cloture motion